Ex.Rfn/Gd No. 193759 Surendra ... vs Union Of India And Others
2021 Latest Caselaw 5103 UK

        HIGH COURT OF UTTARAKHAND AT NAINITAL
                    Writ Petition (S/S) No.1686 of 2017

Ex.Rfn/GD No. 193759 Surendra Singh Rawat                      .....Petitioner

                                       Versus
Union of India and others                                      .... Respondents
Present :-
Mr. Avidit Noliyal, Advocate, for the petitioner.
Mr. Rajesh Sharma, Standing Counsel, for the Union of India / respondents.

                                                   Dated: 14th December, 2021
                               JUDGEMENT

Hon'ble Sharad Kumar Sharma, J.

The petitioner to the present Writ Petition was an ex soldier of the Assam Rifles, has preferred this Writ Petition praying for quashing of the orders dated 09.09.2015, 16.12.2015, 09.03.2016 and 27.04.2016, passed by respondents authorities, as a consequence thereto, the respondents have declined to sanction or award the disability pension to the petitioner, along with other terminal benefits with interest payable on it, with effect from 30th April, 2002, i.e. from the date when the petitioner was held to be invalidated to serve in the armed services on account of the disablement, which he has suffered.

2. The contention of the learned counsel for the petitioner in the Writ Petition, is that during the course of his service, after his initial inductment in the Assam Rifles as back as on 23rd November, 1996, after completion of his basic mandatory training, he was posted in the 19th Battalion of the Assam Rifles and after having rendered about 5-1/2 years approximately, of services, he was declared as to be a disabled person by the Medical Board, thus constituted by the respondent since having suffered from a disease causing 60% disablement, named as "Fibrous Dysplasia Lt. Temporal Bone OPT (Old) (Optd)". The reason for denial of the disability pension, despite of having suffered with 60% disability was on the ground that

the Medical Board, thus constituted by the Assam Rifles authorities had submitted its report that the 60% disability of the aforesaid disease, which the petitioner suffered from was not aggravated on account of his rendering of services or service conditions in the Para Military Forces and consequently, he would not be entitled for the disability pension.

3. In fact, this was the first medical board report, which constituted as to be the basis for denial of disability pension. Based on the said Medical Board Report, he was discharged from the services of the Para Military Forces of the Assam Rifles on 30th April, 2002. The petitioner contends that ever since then, he has been corresponding with the respondents for the purposes of remittance of the disability pension, but to the utmost arbitrary attitude of the respondent, in fact, the Commandment of the 19th Assam Rifles, by virtue his communication of 11th December, 2014, made to the mother of the petitioner, had rather declared the petitioner, as to be dead and has requested the mother to apply for being granted a compassionate appointment, this was contrary to the true fact as still petitioner was alive.

4. In fact, this communication of 11 December, 2014, itself seems to be arbitrary, because in fact on the date the petitioner was alive and as would be apparent from the subsequent considerations which has been made by this Court, that this communication made by the Commandant was absolutely uncalled for and an ethical on the part of the respondents, besides being a replica of arrogance and motivated by uncalled professional egos.

5. The petitioner had submitted, that since the disease, which he had suffered was as a consequence of the military services and its conditions, which was rendered by him, a subsequent medical board was constituted and the petitioner was examined and the disability pension was required to be assessed in accordance with the

observations made in the medical board report to be read with CCS Rules as provided in schedule 1 of the Extraordinary Pension Rules, applicable in the Department of the respondents. Despite of the fact that the petitioner had suffered a disability on account of the services rendered with the armed forces, and it was directly attributable to the services rendered by the petitioner, because the disease has aggravated thereof, but still, by an order of 9th September, 2015, the petitioner was held to be not eligible to be granted with the disability pension.

6. In pursuance to their own communication of the respondent dated 16th December, 2015, in fact, a review medical board was requested to be constituted by the petitioner, which was conducted, in order to consider the claim of the petitioner, which was later on re-examined by the respondents and still the respondents persisted on the decision, that since the disease with which the petitioner suffered from was not attributable to the Para Military, for services rendered by him, he was held to be not entitled to be granted the disability pension. Hence the Writ Petition.

7. In the writ petition, when initially it was argued, the respondents were directed to file their counter affidavit. The respondents in response to the pleadings raised by the petitioner had filed their counter affidavit on 6th December, 2017, and in the counter affidavit thus filed by the respondents, they have placed on record a medical board report, (annexure 9) to the counter affidavit, wherein, as per the report thus submitted on 30th September, 2001, the medical board has observed that the disease, which the petitioner suffered from was aggravated on account of services rendered by him in the Para Military Services and reference may be had to the recommendation which has been made in column 5 (a) of the said medical board report dated 30th September, 2001, which is extracted hereunder :-

"5 (a) whether attributable / aggravated to : percentage of service or not. disablement

.....................................................................................................

Aggravated : 60%"

......................................................................................................

8. If the conclusion thus made therein is considered, in fact, it has been observed, that admittedly the petitioner was supposed to be relieved from the military services because the disease, which he has suffered and which stood aggravated, it was rather on account of the disablement caused due to rendering of services with the armed forces. This is fact not denied by the respondents' Counsel or rather admitted by him, during the course of argument and rather he himself has made a reference to the Medical Board Report dated 30th September, 2001.

9. In that eventuality, I am of the firm opinion, that once the disease, which the petitioner suffered from has been observed by the medical board report to be attributable to the nature of services rendered by him in Para Military Forces, he would be entitled for the grant of disability pension in the light of the principles, which has been laid down in the matter as reported in (2013) 7 SCC 316, Dharamvir Singh Vs. Union of India and others, which has dealt with the aspect, that the burden to prove as to whether a military personnel has suffered from a disease, which was attributable to the nature of services rendered by him, in fact, in the light of the ratio laid down in the said judgement, and if it is read with the Medical Board Report dated 30th September, 2001, in relation to the petitioner, the petitioner would be falling within the zone of consideration of the Pension Regulation of the Army, i.e. of 1961 and particularly, the Regulation 173, which was considered in para 16, 17 and 18 of the said judgement, which is extracted hereunder.

"16. Regulation 173 of Pension Regulations for the Army, 1961 relates to the primary conditions for the grant of disability pension and reads as follows:

"Regulation 173. Unless otherwise specifically provided a disability pension consisting of service element and disability

element may be granted to an individual who is invalidated out of service on account of a disability which is attributable to or aggravated by military service in non-battle casualty and is assessed 20 per cent or over The question whether a disability is attributable to or aggravated by military service shall be determined under the rule in Appendix II."

17. From a bare perusal of the Regulation aforesaid, it is clear that disability pension in normal course is to be granted to an individual (i) who is invalidated out of service on account of a disability which is attributable to or aggravated by military service and (ii) who is assessed at 20% or over disability unless otherwise it is specifically provided.

18. A disability is 'attributable to or aggravated by military service' to be determined under the "Entitlement Rules for Casualty Pensionary Awards, 1982', as shown in Appendix- II. Rule 5 relates to approach to the Entitlement Rules for Casualty Pensionary Awards, 1982 based on presumption as shown hereunder:

"Rule5 . The approach to the question of entitlement to casualty pensionary awards and evaluation of disabilities shall be based on the following presumptions:

PRIOR TO AND DURING SERVICE

a) member is presumed to have been in sound physical and mental condition upon entering except as to physical disabilities noted or recorded at the time of entrance.

b) In the event of his subsequently being discharged from service on medical grounds any deterioration in his health which has taken place is due to service." From Rule 5 we find that a general presumption is to be drawn that a member is presumed to have been in sound physical and mental condition upon entering service except as to physical disabilities noted or recorded at the time of entrance. If a person is discharged from service on medical ground for deterioration in his health it is to be presumed that the deterioration in the health has taken place due to service."

Since the aspect of pertaining to the onus of proof, which was considered by the said judgement in para 19, in fact, that issue would not be involved in the present case, particularly when the respondents in their counter affidavit have come up with the case, that the disease, which the petitioner suffered from was on apparent from the medical

board's report, which was held to be attributable to the services rendered by him in the Para Military Forces. Hence the petitioner would be entitled for the disability pension.

10. A similar issue was also considered by the Co-ordinate Bench of Allahabad High Court in a judgement reported in (2001) 1 AWC 363, Mahavir Singh Rawat Vs. Union of India and other, while considering the implications of the Pension Regulations for the Army 1961, in its para 8, 9 and 11, have dealt with the parameters which were required to be considered to bring a military personnel for the purposes his entitlement for the grant of disability pension. Para 8, 9 and 11 of the said judgment read as under :-

"8. An analysis of the above provisions with regard to the award of the disability pension, in true perspective, leaves no room for doubt that an employee who has been invalidied is entitled to disability pension even if he was suffering from the disease prior to his enrolment in service but it aggravated due to stress and strain of the duties while in employment. The benefit of reasonable doubt shall always be extended in favour of the boarded out employee if a claim for disability pension is made and it is established that at the time of enrolment in service, he was not having any ailment of the type for which he has been invalidied. If the Medical Board has not specifically mentioned that the disease was of such a type and latent in nature that it could not be detected by any means at the time of enrolment of such an employee, it has, of necessity, to be presumed, in view of the unambiguous rules governing the disability pension, that the disability has come into existence by reason of the military service.

9. The petitioner was enrolled in service of the Army at a time when he was a young person of about 17 years of age. At that time, he was not found to be suffering from any illness rendering him unfit to be enrolled. The enrolment of the petitioner at the young age after vigorous, thorough and intensive repeated medical examinations would certainly rule out the possibility of his suffering from disease of Nurosis Anxiety. The petitioner served only for about five years. It was only in June, 1980, when it was detected on medical examination that the petitioner was suffering from Nurosis Anxiety-300. Prior to the said date, the petitioner was subjected to routine medical examinations but was not found suffering from any such disease. The disease obviously came into existence for the first time when the petitioner was posted in

Udhampur (J&K). This conclusion is fortified from the fact that in column No. 1 of Part III of the Form, a copy of which is Annexure-S.C.A. 1, against the entry "Did the disability/ies exist before entering the service?" the Medical Board has incorporated an emphatic "No". There is no mention of the fact throughout the forms pertaining to the medical opinion of the Board "that the disease (Nurosis Anxiety-300) could not have been detected on medical examination prior to acceptance (of the petitioner) for service." In the absence of such a note, it cannot be concluded that the disease which the petitioner suffered "will not be deemed to have arisen during service". In view of the above undisputed facts, one cannot but conclude that the petitioner had suffered from the illness of Nurosis Anxiety-300 by reason of the military service as the petitioner had not evinced any sign of such a disease when he was accepted for enrolment. Nurosis is a sort of mental illness characterised by irrational or depressive thought or behaviour caused by a disorder of the nervous system usually without organic change. Anxiety is nothing but mental tension which is the reflection of the stress and strain - a case of extreme tension. If these symptoms could not be detected at the time of enrolment on account of their inherent latent nature, the respondents cannot adopt a callous attitude to overthrow the claim of the petitioner for disability pension as there is no specific mention of the fact as contemplated in Rule 7 (b) that the ailment was such which could not be detected at the time of the enrolment. The rules governing the disability pension are for the benefit of the employee. They are piece of beneficial legislation and they intend to promote social justice. In the case of any doubt, benefit has to go to the unfortunate employee whose term of employment came to be curtailed on medical grounds.

11. The claim of the petitioner for alternative job does not merit acceptance. Since the petitioner has been found to be medically unfit and has been reduced to category 'EEE' he stands debarred from seeking employment. The benefit of the letter dated 18.6.1971 issued by the Government of India, Ministry of Defence does not come to his rescue."

11. Accordingly, since there is no quarrel inter se between the parties of the present Writ Petition, that the disease which the petitioner suffered was aggravated due to his services and the nature of his services and engagement in Assam Rifles, he would be entitled for the payment of disability pension from the date of his discharge

from the services based on the medical grounds, i.e. with effect from 30th April, 2002.

12. Hence, a writ of mandamus is issued to the respondent to consider and grant the disability pension to the petitioner w.e.f. the date of his discharge from the services, based on the principles laid down on Regulation 173, as dealt by the Hon'ble Apex Court referred to above, and particularly, based on the medical board report of 30th September, 2001. The disbursement of the disability pension would be ensured by the respondents to be paid to the petitioner along with its arrears accruing w.e.f. 30th April, 2002, within the period of four months from the date of production of certified copy of this judgement.

13. Accordingly, for the reasons assigned above, all the impugned orders, which are under challenge in the Writ Petition, leading to the denial of disability pension to the petitioner, would hereby stand quashed. The Writ Petition is accordingly allowed.

(Sharad Kumar Sharma, J.) 14.12.2021 Shiv